20150929 TZHC Dr es Salaam

• iJ;.1 i:., 11. 11f· IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 129 OF 2002 HAJI WAZIRI MKOBO as legal personal representative of the late WAZIRI JUMANNE MKOBO .............•................................ 1 8 T PLAINTIFF RUKIA MKOBO .....•........-.............•......•.......•......•••........... 2ND PLAINTIFF V VAGINGA AND FAMILY COMPANY LTD •........................ 1 8 T DEFENDANT TANZANIA POSTAL BANK .......................•..••........ ~·······2ND DEFENDANT AZANIA BANK LIMITED ........•....................•................. 3RD DEFENDANT TANZANIA INVESTMENT BANK ................................... 4 TH DEFENDANT IGNASIO NYARUSI .................... ................................... STH DEFENDANT MARCUS PAUL ..............................•......•.................... ~~.6TH DEFENDANT ELYNICO MK OLA .•....•.••••.••••• .-.-•.••••.•.•.••.•••••••.••••..••..•... 7TH DEFENDANT ATUPELE PAUL VAGINGA ............................................. STH DEFENDANT ' 1 JOHN NZUNDA ••..•.•..•.•.••.•••..••....••.•.•.••...•••••.•••••.••.•••.•.. 9TH DEFENDANT LANDMARK HOTEL LIMITED ...........•..................•...•.. l,OTH DEFENDANT ~ ~ YONO AUCTION MART ...................................•......•.... 11 TH DEFENDANT (Counter - Claim) TANZANIA POSTAL BANK ................................................•. 1 ST PLAINIFF AZANIA BANCORP LIMITED ............................................ 2ND PLAINTIFF TANZANIA INVESTMENT BANK ....................................... 3RD PLAINTIFF V HAJI WAZIRI MKOBO as legal personal representative of the late 2 WAZIRI JUMANNE MKOB0 ................................... 1 8 T DEFENDANT RUKIA MKOBO .••..••••••.•.••••.•••.••••.•.••••••••.••.••..•..••.••.••••• 2ND DEFENDANT VAGINGA AND FAMILY COMPANY LTD ........................ 3RD DEFENDANT IGNASIO NYARUSl ...................•.................•...•............. 4TH DEFENDANT MARCUS PAUL •••••••••.••••.••••.••.•.••••.•.••••••••.•••.••.••..••.••.••• 5TH DEFENDANT ELYNICO MKOLA.•••••••••••.•••••••••••••••..••••.•.••••.•.••••••••••... 6TH DEFENDANT ATUPELE PAUL VAGINGA ............................................ 7TH DEFENDANT JOHN NZUNDA•••.•.••.•••..••••...••...•••••••.•.•.•••••.•.•.••.•.••..•••• 8TH DEFENDANT ABDON MOSES .•..••••.•.•.....••..••...••...••.•••.•••.•.••...•.•••.••.•. 9TH DEFENDANT JUDGMENT Date of last Order 19/6/2015 Date of Judgment 29/9/2015 Shangwa, J. This case was presented for filing on 10 th April, 2002. It was filed by the late Waziri Jumanne Mkobo and his wife Rukia Mkobo (plaintiffs) against Vaginga and Family Co; Ltd and 7 Others (defendants). It is a voluminous backlog case file of whose proceedings weigh 10 kilograms. 3 During the proceedings, Waziri Jumanne Mkobo died on 1 st July, 2007. Later on 20 th February, 2009, his son Haji Waziri Mkobo was appointed by the Primary Court of Magomeni as Administrator of his father's estate. On 29 th November, 2011, Counsel for the plaintiffs who was by then Ms. Anna Marealle requested the Court to join the said Administrator of the deceased's estate in the suit. Her request was granted. Thereafter, the plaint was amended and presented for filing on 22 nd December, 2011. In the amended plaint, one John Nzunda, H.S. Amon and Yono Auction Mart were joined in the suit as 9 th , 10 th and 11 th defendants respectively. On 13 th November, 2013, the plaint was further amended following a 4 request by Musa, Advocate to join Land Mark Hotel in the suit as 10 th defendant in lieu of S.H. Amon. The plaintiffs' claim is contained at paragraph 9 of the plaint which is as follows and I quote:- "That the plaintiffs' claim against the defend ants jointly and severally is for the Court's declaratory orders to the effect that the Mortgage Deed dated 8 th September, 1998 had already been discharged, disposition of the property mortgaged was unlawful, to order release of the certificate of Title NO 31474 and general damages to 5 the tune of not less than Tshs 500,000, 000/ = among other reliefs". Hearing of this suit started on 2 nd May, 2014 and ended on 31 st March, 2015. When hearing started on 2 nd May 2014, eight issues were framed for determination by this Court. They are as follows:- 1. Whether the 1st mortgage was discharged. 2. Whether the 2 nd mortgage was guaranteed by the plaintiffs. 3. Whether the sale of the property in dispute was lawful. 4. Whether the 10th defendant acquired good title as a result of public 4 6 auctioning of the suit property - \ conducted by 2 nd defendant. 5.Whether the 3rd and defendants did advance loan to 1 st defendant in the main suit. 6. Whether the 1 st defendant in the counter- claim namely Haji Waziri Mkobo did guarantee the loan issued to 3 rd defendant in the counter- claim namely Vaginga & family Company, Ltd. 7. Whether the defendants in the counter- claim jointly and severally breached the terms and conditions in the facility agreement between 7 plaintiff and 3 rd defendant in the counter - claim. 8. To what reliefs are the parties in the main suit and counter claim entitled. Before determining the above listed issues, let us look at the facts of this case which are as follows:- In 1998, the 2 nd defendant Tanzania Postal Bank gave credit facility to the 1 st defendant M/S Vaginga and Family Co; Ltd amounting to Tshs 350 Million. Upon doing so, the late Waziri Jumanne Mkobo mortgaged his Right of Occupancy comprising of plot NO. 2 Block 'C' certificate of Title NO 31474 situated at Sinza, Dar es Salaam to secure the said loan. -·The . mortgage was effected on 8 th September, 1998 by • 8 entering into a written agreement for mortgage of the aforesaid property. The mortgage was consented to by the 2 nd plaintiff who is the widow of the late Waziri Jumanne Mkobo. The amount of Tshs 350 Million which was advanced by Tanzania Postal Bank to Vaginga and Family Co; Ltd as loan was repaid. On 3 rd May, 1999 ' Tanzania Postal Bank wrote a letter with ref NO TPB / CD 15/ 107 to the Managing Director of M/S Vaginga and Family Co; Ltd acknowledging full repayment of the said loan. Despite the fact that M/S Vaginga and Family Co; Ltd repaid the loan to Tanzania Postal Bank which is above mentioned, the late Waziri Jumanne Mkobo's Right of occupancy was not immediately returned to him. 9 On 2 nd June, 2000, the late Waziri Jumanne Mkobo wrote a letter to the Director, Tanzania Postal Bank requesting him to discharge and return to him his Right of Occupancy on Plot NO 2 Block 'C' Title NO 31474 Sinza area, Dar es Salaam. In his letter, the late Waziri Jumanne Mkobo categorically informed the said Director that he was no longer guarantor of the loan advanced by Tanzania Postal Bank to M/S Vaginga and Family Co; Ltd. The said letter was copied to M/S Vaginga & Family Co; Ltd. On 12 th June, 2000, the deputy loan Manager of Tanzania Postal Bank (2 nd defendant) wrote a letter with ref. TPB / CD / 15 / 532 addressed to the late Waziri Jumanne Mkobo informing him that Vaginga & Family 10 Co; Ltd 1 st defendant had not completed payment of its loan and that his Right of Occupancy will be returned to him after payment of the loan plus interest thereon. On 16th June, 2000, after receiving the aforesaid letter, the late Waziri Jumanne Mkobo went to MS Vaginga and Family Company's Ltd office located in CRDB Building in order to know the position. He made some discussion with its officer and reached some agreement. On 19 th June, 2000, Vaginga and Family Co; Ltd wrote a letter in Kiswahili to the late Waziri """-·" Jumanne Mkobo with ref. NO VFCL/Mkobo / CLF / 009 which was headed and written as follows and I quote:- ,, 11 "YAH: MAKUBALIANO YA UDHAMINI WAKO KWA -✓ KAMPUNI KWA MSIMU WA KAHAWA 2000/2001 Tafadhali rejea mazungumzo yetu kuhusu kichwa cha habari hapo juu, yaliyofanyika ofisini kwetu, CRDB Building Ijumaa tarehe 16/6/2000. Barua hii ni kuthibitisha makubaliano yetu kuhusu udhamini wako kama ifuatavyo:- 1. K wamba kampuni itakupa taarifa mara kwa mara kuhusu baki la mkopo ambao wewe ni mdhamini. 2. Kampuni imekubali kukupa malipo ya awali ya udhamini wako. 12 3. Utateuliwa kuwa ·Mkurngenzi wa kampuni na pia signatory wa hundi za kampuni kwa account ya Mbinga. 4. Utapewa uwakala wa kununua kahawa Mbinga kwa msimu 2000/ 2001 ... 5. Kampuni inathibitisha kuwa endapo itatokea hasara na mkopo wa benki ubaki basi mali za kampuni na za wenye hisa ziuzwe kwanza ili kufidia deni kabla ya mali za wadhamini. 6. Makubaliano ya udhamini yaishie mwezi Mei wa mwaka unaofuata. 7. ............. . Tafadhali saini nakala ya barn a hii kuthibitisha kukubaliana kwako kwa \0 13 ajili ya utayarishaji wa mkataba . rasmi. UTHIBITISHO WA MDHAMINI Mimi Waziri J. · Mkobo ninathibitisha kwamba ninakubaliana na udhamini wa kampuni kwa msimu wa kahawa 2000/2001 kwa makubalfano yaliyoorodheshwa hapo juu. Sgd 19/6/2000 Sahihi Tarehe p 0~ 24 th October, 2000, Tanzania rostal Bank and Tanzania Investment Bank entered into a DEED OF VARIATION with the late Waziri Jumanne Mkobo. Under this deed of Variation, it was pointed out that whereas the late Waziri Jumanne Mkobo had 14 mortgaged his Right of Occupancy comprising of plot \. a NO. 2 Block 'C' Certificate of Title NO 31474 at Sinza, Dar es Salaam to secure the loan of Tshs 350, 000, 000/= and that whereas Vaginga and Company, Ltd had on 29 th July, 1999 secured an additional credit facility from Tanzania Postal Bank (2 nd defendant), Tanzania Investment Bank (4 th defendant) and 1 st Adili Bank Corp Ltd to the tune of Tshs 1, 250,000,000/= and that the said facility was to be secured by, among others, a first legal mortgage over plot NO 2 Block 'C' Sinza area, Dar es Salaam and that whereas pursuant to a further request of Vaginga and Family Company, Ltd , the aforesaid banks have agreed to provide further facility by providing an additional facility of Tshs 975 Million , the late Waziri Jumanne Mkobo has accepted that the mortgaged property at Sinza would continue 15 and extend to be security for the second loan with ,interest and other charges thereon. Quite unfortunately, the 1st defendant Vaginga and Family Co; Ltd became insolvent and failed to repay complete amount of the credit facilities of Tshs 1, 218, 750, 000/= advanced to them by the triple Banks. As a result, on 22 nd March, 2002 Tanzania Postal Bank and Tanzania Investment Bank being the registered holders of a debenture Deed dated 17 th August, 1999 made between Vaginga & Family Co; Ltd and the triple Banks appointed Mr. Walter Buxton Chipeta and Ms. Aisha Zumo Bade of Law Offices of Chipeta, to be the joint Receivers and Managers of all the property and assets charged by the aforesaid Debenture Deed. 16 On 19 th May, 2005, the said Receivers and Managers issued in the Guardian News Paper a notice of receivership and invitation of bids of the mortgaged property belonging to Waziri Jumanne Mkobo (deceased) namely plot NO 2 Block 'C' Land Office NO 71457, Sinza area, Dar es Salaam, Certificate of Title NO 31474. On 26 th July, 2005, Super Auction Mart and Court Broker under the instructions of the said Receivers and Managers of Vaginga and Family Co; Ltd issued a notice in the Daily News Paper for public auction of the aforesaid mortgaged property and informed the public that the auction was to be conducted on Saturday 13 th August 2005 at 10.00 a.m. at the premises. However, no public auction took place on the said date. It took .\ 17 place far later on 10th July, 2007 at 10.30 a.m. It was conducted by Yono Auction Mart and Company Ltd after giving notice to the public in Mzalendo News Paper dated 8 th July, 2007. LAND MARK HOTEL LTD was the highest bidder (10 th defendant). The mortgaged property was bought by LAND MARK HOTEL LTD at Tshs 450,000,000/=. It was handed over to the said purchaser on 30 th April, 2008. After being handed over the said property, LAND MARK HOTEL LTD required Waziri Jumanne Mkobo's family to Vacate the suit premises but they refused. They were forcefully evicted from therein. Thereafter, the Director General of LAND MARK HOTEL Mr. H.S. Amon gave Ths 35, 000,000/= to the 2 nd plaintiff Rukia Mkobo who was second wife to the late Waziri 18 Jumanne Mkobo and a similar amount to Amina Ali who was the late Waziri Jumanne Mkobo's first wife. He did so in order to appease them and assist them in looking for alternative accommodation. That is the end of the facts of this case. Let us now look at the evidence which was adduced by the parties. Counsel for the plaintiffs at the time of hearing this suit was Mr. Nehemia. He called two witnesses to prove this . case. . These witnesses are the \N CA.-z_\ \I'\ 1 st plaintiff Haji Warizi Mkobo and the 2 nd plaintiff Rukia Mkobo. The evidence given by the above witnesses was brief. P.W.1 Rukia Mkobo told this Court that in 1999 her late husband Waziri Jumanne Mkobo received a letter from 2 nd defendant that the loan advanced to 1 st defendant had been paid. That her late 19 husband did not guarantee the 1st defendant for the second loan. That the mortgaged property at Sinza was sold without notice of sale to the public and that no public auction was conducted. That the counter- claim by 2 nd , 3 rd and 4 th defendants is false because her late husband had no contract with them to mortgage their property. That the 10th defendant's Director gave her Tshs 35, 000,000/= and gave a similar sum to her co- widow for giving him vacant possession of their house. P.W.2 Haji Waziri Jumanne Mkobo told this Court that his father died on 1 st July, 2007 and that he was appointed as Administrator of his estate by the Primary Court of Magomeni on 19 th February, 2009. That the house in issue was sold on 10th July, 2007 when there was a case in Court and that no public auction to sell 20 it was conducted. That it was sold when his late father was not indebted to anybody. On the defence side, the 1 st defendant Vaginga and Family Company Ltd did not enter appearance. Ms. Kirethe, Advocate led the defence for 2 nd , 3 rd and 4 th defendants. Mr. Musa, Advocate led the defence for 10 th defendant. Like the 1 st defendant, the 5 th , 6 th , 7th, 9th and 11 th defendants did not appear to defend themselves. Ms. Kirethe called three witnesses namely r - Abdallah Mohamed Mtandika - D.W.1, Charles Mugira D.W. 2 and D.W.3 Julie Christopher Mrema. Mr. Musa called one witness. Hereinbelow is what each of those witnesses told this Court. 21 D.W.1 told this Court that he is the Chief Manager (credit) in the Tanzania Postal Bank (2 nd defendant). That he knew the late Waziri Jumanne Mkobo who was the guarantor of the loan of Tshs 350 Million and two more . loans of Tshs 1.25 billion and Tshs 975,000,000/= advanced by the Banks to Vaginga and Family Company Ltd (1 st defendant) for the purposes of coffee purchase in Mbinga and Mbozi Districts for 1998/ 1999 and 1999/2000 and 2000/2001 crop seasons. That the two more loans were advanced to the , 1st defendant by three banks which jointly contributed the said sums. That the three banks are Tanzania Postal Bank (2 nd defendant), Azania Bancorp Ltd (3 rd defendant) and Tanzania Investment Bank (4 th defendant). That the 5 th - 9 th defendants were directors of the 1 st defendant Company. That the late Waziri 22 Jumanne Mkobo did guarantee the loan by executing a legal mortgage with Tanzania Postal Bank (2 nd defendant) dated 8 th September, 1998 exhibit Pl in respect of his house on plot NO 2 Block 'C' Sinza area, Dar es Salaam with Title NO 31474. That the mortgage was for the three loans granted to the 1 st defendant by the three banks after entering into a syndication Agreement to do so. That apart from the legal mortgage to secure the loan, the late Waziri Jumanne Mkobo issued personal guarantee fo'r the loan of Tshs 975,000,000/=. He tendered the personal guarantee.of the said loan in evidence which was admitted as exhibit D4. That he was aware of the Deed of Variation between Tanzania Postal Bank and Tanzania Investment Bank and Waziri Jumanne Mkobo in respect of the legal mortgage dated 24 th September, 1998. He tendered the 23 said Deed of Variation in evidence and it was admitted as exhibit D5. That Vaginga and Family Company Ltd failed to repay the entire loan. That the unsettled amount for the crop season of 1999 / 2000 was rolled over to 2000/2001 crop season. That in 2001, the outstanding amount of the loan for the three banks was Tshs 1, 218, 750 /= plus interest. That the 1 st defendant Company was put under receivership in order to recover the said loan amount. That the 2 nd defendant and 4 th defendant appointed the Law offices of Chipeta and Associates as receiver of the assets of the 1 st defendant Company and that Waziri Jumanne Mkobo's house at Sinza was sold by public auction in order to recover the loan and that the public was notified about the date of its auction. That it was sold by Yono Auction Mart at Tshs 450, 000,000/= and that the one who won 24 the auction is the 10 th defendant i.e Land Mark Hotel Ltd. That in the counter - claim the plaintiffs are praying for a declaration that the sale was legal because the records show that the 1 st defendant was still indebted when it was sold by public auction. D.W. 2 told this Court that he is a senior legal consultant of 3 rd defendant Azania Bancorp Ltd. That he knows the late Waziri Jumanne Mkobo. That the said deceased was guarantor of the loan advanced to Vaginga and Family Company Ltd (1 st defendant). That the deceased offered his house at Sinza, Kinondoni District, Dar es Salaam to be mortgaged as security for the loan which was extended to 1 st defendant. That he knows Rukia Mkobo (2 nd plaintiff) in the main suit and (2 nd defendant) in the Counter- Claim. That she is 25 widow of the late Waziri Jumanne Mkobo. That the 4 th to 9 th defendants in the Counter - Claim were guarantors of the loan given by three banks to Vaginga & Family Company Ltd. That the one who bought the late Waziri Jumanne Mkobo's house at Sinza was S.H. Amon/ Land Mark Hotel Ltd. That the said house was sold by Yono Auction Mart at a public auction. That Azania Bancorp Ltd was earlier before known as First Adili Bancorp Ltd and that at present it is known as Azania Bank Ltd (3 rd defendant). That Vaginga and Family Company borrowed Tshs 1, 2000, 000,000/= from three banks namely Tanzania Postal Bank Tshs450, 000,000/=,Azania Bank Tshs 450,000,000/= and Tanzania Investment Bank Tshs 400,000,000/=. e:.. That the purposes of the loan was to finance f offee purchase from Mbozi and Mbiga Districts in Mbeya and ,> • 26 Ruvuma Regions respectively. That the late Waziri Jumanne Mkobo's house at Sinza Dar es Salaam with Certificate of Tittle NO 31474 was one of the properties which were mortgaged as securities for the above mentioned loan. That the 2 nd , 3 rd and 4 th defendants entered into a syndication Agreement exhibit D2. That following the said Agreement Waziri Jumanne Mkobo's house at Sinza continued to be one of the loan securities advanced by the three Banks to Vaginga and Family Company, Ltd. That up to the date Waziri Jumanne Mkobo's house at Sinza was sold by public auction on 24/8/2007, Vaginga and Family Co; Ltd was still indebted to the three Banks. That the house at Sinza was sold at Tshs 450,000,000/= which was distributed to the three banks. ' . 27 D.W. 3 Julie Christopher Mrema told this Court that she is working with Tanzania Development Bank former Tanzania Investment Bank Ltd (4 th defendant). That she has been working with TIB LTD for the past 32 years. That her role is to monitor and supervise completed projects. That, first the late Waziri Jumanne Mkobo guaranteed a loan of Tshs 2. 25 billion which was given to Vaginga & Family Company, Ltd (l st defendant) by a syndicate of three banks namely Tanzania Investment Bank (TIB), Tanzania Postal Bank and Azania Bank. That Rukia Mkobo (2 nd defendant) who is widow of the late Waziri Jumanne Mkobo consented to the security given by her late husband for the said loan. Second, that the 5 th to 9 th defendants were guarantors of the loan and that they were directors in the 1st defendant Company. That the 10th 28 defendant bought the late Waziri Jumanne Mkobo's house at a public auction conducted by Yono Auction Mart and that he purchased it at Tshs 450, 000,000/=. The 10th defendant's witness was Saul Henry Amon. He told this Court that he owns Land Mark Hotel Ltd and Pattaya Guest Houses. That he bought the late Waziri Jumanne Mkobo's house at Sinza at a public auction conducted on 10th July, 2007 by Yono Auction Mart. That the auction was published in the Daily News and through street announcements. That on the date of auction, there were many people and that the late Waziri Jumanne Mkobo's children were making noise that the house should not be sold. That he won the auction as the highest bidder and bought it at Tshs 450,000,000 /=.That after full payment of the purchase 29 price, Yono Auction Mart handed him over the suit premises but that there was resistance from the deceased's children and widows. That they went to report him to the OCD at Oysterbay Police Station. The OCD advised them to file a civil suit against Tanzania Postal Bank and leave him alone. That they discussed the matter and it was agreed that the house should be handed over to him in January, 2008. That the late Waziri Jumanne Mkobo's two widows were bitter and that in order to cool them down, he decided to pay each of them Tshs 35, 000,000/= and that after sometimes, they vacated the house in issue and he occupied the same by constructing the show room and laundry thereon. That is the end of the evidence adduced by witnesses on behalf of the principal parties to this case. 30 After stating the facts of this case and the evidence given by witnesses on both sides, let me now start to determine the issues. As it will be seen, these issues are straight forward. The first issue is whether the 1 st mortgage was discharged. The evidence on record clearly show that the 1 st mortgage was discharged when the 1st defendant Vaginga and Family Company Ltd completed payment of the first loan of Tshs 350 million obtained from the 2 nd defendant Tanzania Postal Bank in 1998. I therefore answer this issue in the affirmative. The second issue is whether the 2 nd mortgage was guaranteed by the plaintiffs. As a matter of fact, the 2 nd mortgage was guaranteed by the late Waziri Jumanne Mkobo who was the 1 st plaintiff's father and the 2 nd plaintiff's husband. This was done on 24 th October, 31 2000 when Tanzania Postal Bank (2 nd defendant) and Tanzania Investment Bank (4 th defendant) entered into a Deed of Variation with the late Waziri Jumanne Mkobo in which he accepted that his mortgaged house at Sinza would continue and extend to be security for the second loan obtained by Vaginga and Family Company Ltd (l stdefendant) from Tanzania Postal Bank, Tanzania Investment Bank and 1 st Adili Bancorp Ltd. The said deed of Variation was tendered in evidence and admitted as exhibit DS. I also answer this issue in the affirmative. The third issue is whether the sale of the property in dispute was lawful. It is common knowledge that the property in dispute is a house on plot NO 2 Block 'C' Sinza area, Dar es Salaam with certificate of Title NO .... 32 31474. In my opinion, the sale of the said property was lawful. First of all, this property was mortgaged property for security of the loan obtained by Vaginga and family Co; Ltd frqm the Syndicate of Banks. i.e Tanzania Postal Bank, Azania Bancorp Ltd and Tanzania Investment Bank. Vaginga and Family Company Ltd was unable to pay the loan of the said banks amounting to Tshs 1,218, 750,000/=. It became bankrupt. The one who was appointed as receiver is Chipeta and Associates. The said house was sold by Yono Auction Mart under instructions of the said receiver. It was sold at a public auction to the 10 th defendant's Director who was the highest bidder. In fact, it was sold to him at Ths 450,000,000/= and he paid. Before selling it, the public was notified by Yono Auction Mart. As it was sold at a public auction and the 33 . 10th defendant's Director was the highest bidder, the question that it was sold at underprice cannot be entertained. In cross- examination by counsel for the 10th defendant, D.W. 1 Abdalla Mohamed Mtandika told this Court that had the 1 st defendant paid the loan, the plaintiffs' house would not have been sold. I repeat to say that the sale of the house in issue was lawful. This disposes of the 3 rd issue which is answered in the positive. The fourth issue 1s whether the 10 th defendant acquired good title as a result of public auctioning the suit property conducted by the 2 nd defendant. First of all, I wish to point out here that the auctioning of the suit property was not conducted by the 2 nd defendant. I ,/~' ., " ,'I. 34 • It was conducted by the 11 th defendant Yono Auction Mart on 10 th July, 2007 for the purposes of recovering the loan granted to Vaginga and Family Company Ltd by a syndicate of Banks. Tanzania Investment Bank had a pari pasu sharing agreement of the securities for the loan - see exhibit D 6 (a). It goes without saying that after buying the suit property at a public auction conducted by the 11 th defendant Yono Auction Mart, the 10 th defendant acquired good title. Therefore, I also answer the fourth issue in the affirmative. The fifth issue is whether the 2 nd , 3 rd and 4th defendants did advance loan to 1st defendant in the main suit. On the evidence of D.W.1 Abdalla Mohamed Mtandika (credit manager) of Tanzania Postal Bank, D.W.2 Charles Mugira Senior Legal Consultant of 35 Azania Bancorp and D.W 3 Julie Christopher Mrema of Tanzania Development Bank former Tanzania Investment Bank, the answer to this issue is yes. It is undeniable that they did so. This issue is as well answered in the affirmative. The sixth issue is Whether the 1 st defendant in the counter- claim namely Haji Waziri Mkobo did guarantee the loan issued to 3 rd defendant in the Counter- claim namely Vaginga and Family company, Ltd. As a matter of fact, Haji Waziri Mkobo did not guarantee the loan issued to 3 rd defendant in the counter- claim. The one who did so is his father the late Waziri Jumanne Mkobo. Haji Waziri Mkobo is a mere representative of the late Waziri Jumanne Mkobo. This issue is hereby answered in the negative. 36 The seventh issue is whether the defendants in the counter- claim jointly and severally breached the terms and conditions in the facility agreement between plaintiff and 3 rd defendant in the counter- claim. The answer is yes. The defendants were guarantors of the credit facility. They failed to ensure that the loan is paid by 3 rd defendant to the plaintiffs in the counter- claim. So, they breached the terms and conditions in the facility Agreement between plaintiffs and 3 rd defendant in the counter- claim. This disposes of the seventh issue which is answered in the affirmative. The eighth issue is to what reliefs are the parties in the main suit and counter-claim entitled to. In my opinion, the plaintiffs in the main suit are entitled to ... 37 nothing. I dismiss their suit but I make no order as to costs. The plaintiffs in the counter- claim are entitled to . payment by defendants in the counter- claim the outstanding amount of the loan i.e Tshs 1.2 billion plus interest on the said sum at the commercial rate of 38% per annum from 1st March, 2001 to the date of judgment. Thus, I enter judgment in favour of the Delivered in open Court in the presence of Advocate Nehemia for 1st plaintiff and in the absence of the 38 y' defendants' Advocates namely Ms. Kirethe and Mr. Musa ..